Throw Out The Bathwater. Keep The Baby.

DRAFTED IN 2020.  THE LAW HAS OBVIOUSLY CHANGED.  FROM THE STANDPOINT OF MEDICAL ETHICS, THE FACTS AND ANALYSIS HAS NOT. 

In the attached image, one may observe the developing brain, spinal column, liver, digestive system, and lungs of the developing embryo.  Probably more.  Can you see it?  Even with my untrained eye, I can make out these things.  

When I was a child, growing up in the 1960's, the library purchased for me by my parents and grandparents had books with artist images of embryonic development.  There is even a little tail on a human embryo which disappears as development continues.  Can you see the tail, too?  

There are lots of people who would say that a human embryo at this stage of development is entitled to all of the protections we give to fully developed humans.  They say that this is, in every way that matters, a human. In keeping with this view, the embryo is referred to as an "unborn child," and abortion rights activists all over the country are enacting legislation to force a woman seeking an abortion to view an untrasound image of the embryo's beating heart before she can have an abortion.  (For instance, HERE is an article about such legislation, in the New York Times.)   Do you agree, that an embryo at this stage of development should be afforded all the same protections as a full term baby?  

I'm just curious.  Because, when pressed, most people don't.  Even "pro-life" people act in ways that demonstrate they don't, really, think this way.  When a woman in a pro-life church miscarries an embryo, for instance, I'd almost guarantee that she's not given the same level of grief support that is given to a woman who loses a full-term infant.  And I'm not saying that's wrong. Most people can see that the embryo depicted here is not a fully formed human.  

While a woman who has a miscarriage may be devastated by the loss, imagine how much more devastating that loss would be for a woman who had actually felt the baby quickening inside her, held an infant, and whose breasts overflowed with milk for her baby who died.  To say that the loss of the embryo is equivalent to the loss of a full term infant is to trivialize the loss of the woman who lost the full term infant.  I am not saying that miscarriage is not devastating.  But what I am saying is that it does not compare, in emotional terms, to loss of a child one has held physically as opposed to emotionally.

The distinction is not just that a human in embryonic stage is incapable of independent life.  The argument boils even further down, to disagreement about what it means to be "human."   What is it that makes us "human?"  By what measure do we determine when someone is fully "here" and entitled to "life, liberty, and pursuit of happiness?"   A human embryo has potential to become human, certainly.  But when interests cannot be reconciled, the rights of the embryo must be balanced against someone who is already here.  

Most people think of things like breathing, consciousness, feeling, awareness,  having preferences, making decisions -- are important kinds of things that distinguish us as humans.  Most people would admit that if the interests must be balanced and one give way to the other, it is the mother who is already here -- the mother who has hopes and dreams, fears and pain --  whose rights should trump, unless there is good reason to override her rights.  But most of us also recognize there is a point when the rights of the fetus must be protected and respected, and increasingly so as the human potentiality of the fetus becomes more actualized.  Most of us -- those of us in the middle -- actually think there should be some balancing of interests, not just the two extremist views of either the embryo as a full fledged human or the view of a viable fetus as being worthless. 

The U.S. Supreme Court Decision in Roe v. Wade recognizes this balancing test explicitly.  Roe v. Wade does not carte blanche allow all abortions, or restrict all abortions,  Rather, what Roe v. Wade does is impose a balancing test to weigh the rights of the mother against the rights of the unborn.  Early in pregnancy, in the embryonic stages, the mother's rights always trump.  Late in pregnancy, when the fetus would be capable of life outside the womb, a woman must show some compelling interest such as a life threatening medical condition to justify killing the baby.  In the middle trimesters, near to the point of viability, there is a balancing test.  The anti-abortion forces seek to undo this balancing.  Extremists, who do not represent the majority viewpoint, seek to create a legal scenario where the rights of the fertilized egg always trump the rights of the mother, no matter what the circumstances.  

To do so, they appeal to emotion.  A common theme is that abortion stops a beating heart.  

I agree.  Abortion does stop a beating heart.  But, I counter, so does a person who decides to eat beef or pork or chicken, or a shrimp for that matter.  All of these creatures, that many people slaughter and eat for supper, have beating hearts.  Having a beating heart is not the essence of what it means to be human.  

In fact, a pig and a cow and a chicken, animals we routinely slaughter in massive slaughterhouses, also have fear and pain and a good bit of understanding of things that happen in the world.  (If you don't know this, then you haven't spent any time around these animals.)  I urge that, even if we do not want to acknowledge animal consciousness as having the same value we ascribe to human consciousness, we would be remiss not to acknowledge that almost any fully developed animal's level of consciousness is greater than the embryo in the picture above.  I suggest that, if we are to respect LIFE, we must respect ALL LIFE, not just that which we choose to acknowledge or that which resembles that which we ourselves choose to recognize.  How anthropomorphic and what a double standard, to say that only humans have value and also to fail to treat all life with respect.

But anyway, on the subject of respecting life.  What do you think of this embryo?  What is your view?   I'm just curious, because if you think this pig is qualitatively the same think as a hog, then I seriously hope you never invite me to your house for barbecue.  And if you weren't aware that this was a pig embryo, that's part of my point.*  My point is, simply, this:  We can respect life, and we can respect the value of a fetus, without accepting the argument that an embryo is entitled to all of the same protections as a full term infant.  It is possible to value life, and at the same time recognize that the "stops a beating heart" is a preposterous oversimplification of the issues.  It is possible to value the sanctity of life and at the same time adopt a balanced, intellectually supportable view that a woman should be able to choose early term abortion without undue guilt or concern about "stopping a beating heart."  

*The image of this pig is taken from Darkfield Image Gallery:  http://micro.magnet.fsu.edu/optics/olympusmicd/galleries/darkfield/pig1.html 

Elder Mediation Helps Families

A recent article in the New York Times (click HERE for full story) tells the story of a family who got help from an Elder Mediator with a distressing family situation.

An elderly client was calling her caregiver in the middle of the night and making unreasonable demands.  The caregiver was close to quitting her job.  At a family meeting facilitated by attorney and elder mediator Joy Rosenthal, the family discussed the issues and needs of various people affected, including the elderly person and the caregiver.  Then, the group came up with a list of things they could to to make the situation more manageable for everyone.

There are a couple of things I love about this story.

For one thing, it makes it clear that Elder Mediation is helpful in many cases that would not call for court action.  The issue of calling a caregiver in the middle of the night was not the type of thing that people go to court for.   Yes, it is true:  mediation is appropriate for situations involving very serious issues that could legitimately be taken to court.  But mediation is not limited to these types of situations.  It can be helpful at every level of conflict.  Indeed, the earlier a family calls in a mediator, the better.

When the family calls a mediator at the first sign of distress, the mediator can intervene before the family has become polarized and estranged from one another.   (In cases where family appears headed for court, early intervention by a mediator may save not only relationships but tens of thousands of dollars in legal fees and court costs.)  Additonally, mediation enables families to consider options that would never be available in a court of law.  In this case, the family was able to intervene before the caregiver quit, and mediation enabled them to work together to forge a creative, win-win solution.  The result?  The elderly client was happier, everyone had a better understanding of each other, the caregiver was able to to keep her job and work more reasonable hours, and the elderly client was able to retain a trusted employee.   Even more important, the air was cleared, people understood each other better, and a better foundation was laid for future decision making.

Another thing I like about the story is the simplicity of the solution and the way the solution met the true needs of all the parties.  (To learn the exact problem and solution, read the story!)   As this story illustrates, sometimes the solution is very simple, and all it takes  is to talk it through.

As simple as the solution sounds, however, I’m certain it was worthwhile to engage the mediator.   A qualified elder mediator isn't just a person who has decided to act as a middle man and "keep the peace".  A mediator, if properly qualified as an Elder Mediator, is a seasoned professional with advanced training not only in basic mediation skills, but also in mediation of large and complex family issues, and they will have specific training or expertise in elder and geriatric issues.    The mediator will know how to set the stage and manage a meeting in such a way as to ensure that all family members are heard and all interests are on the table before  options or solutions are considered to address those needs.  The integrity of the mediation process is what ensures that once a solution is in place, it is a good solution that does meet all needs, and not just a knee-jerk, slap-a-bandage reaction.   Indeed, that is one of the best values that mediation offers.    By going through the steps in a methodical way, as led by a expert in conflict management, families who choose mediation actually address root causes.  Conflict addressed in this way offers opportunity for families to develop better systems of communicating and making decisions, and thereby have the opportunity to achieve authentic healing and reconciliation.    It's virtually  a no-lose proposition.

To find a mediator in your area, search through mediators listed on the web site Mediate.com, or search specifically for an elder mediator on the site ElderCareMediators.com  .   I've also written a guide to choosing an elder mediator, which can be accessed HERE.

[caption id="attachment_475" align="alignright" width="300" caption="The author with her grandmother"][/caption]

(My own background that prepares me as an Elder Mediator includes approximately 160 hours of study of mediation techniques (including specific study with Zena Zumeta and Susan Butterwick in mediation of Elder issues and contested guardianship cases and study with Richard Blackburn in conflict transformation in large group settings), personal study in elder law, personal experience in elder care management, and graduate level study in medical ethics.  I am a member of the Elder Decisions section of the Association of Conflict Resolution, and I am listed on both of the above sites in the field of Elder Mediation.)

Long Term Care and Medicaid

An article in today's New York Times tells the story of a woman who was prompted to divorce her ailing husband in order to keep from being bankrupted by his anticipated medical and long term care costs. 

Op-Ed Columnist

Until Medical Bills Do Us Part

By NICHOLAS D. KRISTOF

Published: August 30, 2009

Click HERE for story

 

Most people understand that long term care is incredibly expensive, but I don't think they realize just how expensive.  Think in terms of a general range of $60,000 - $100,000 per year, depending on location and services.  In 2008, the average cost for a private room in a nursing home was $76,285, and I use that number because the semi-private rate is not much less.  That's in today's dollars, not adjusted for inflation which will have occurred by the time you need the services. 

People also need to understand that Medicare does NOT pay the cost of long term care.  Let me repeat that: Medicare does not cover the cost of nursing home care.   In 2005, Americans paid $206 Billion for long term care, and amount that does not include any services provided by people who were unpaid such as family members.  

At the present time, Medicare (remember Medicare is not the same as Medicaid) will pay for a lifetime maximum of 100 days of rehabilitative stay in a long term care facility, with three key restrictions.  First, there's a copay of $133.50 per day.  Second, the placement must come after a hospital stay.  Not coming out of a hospital?  Then forget any reimbursement whatsoever from Medicare for in-patient therapy.  Third, the care must be rehabilitative in nature rather than merely care taking.  Not really a candidate for rehab?  Then too bad, so sad.  And after 100 days?  That's the end.  Medicare ain't gonna help you with any other long term care costs. 

Overall, 75% of Americans will need long term care in the future.  There are four ways to pay for costs of that care.  They are (1) out of pocket, (2) long term care insurance, (3) reverse mortgages, and (4) Medicaid. 

Over and over, I hear people using the term "Medicare" when what they really mean is "Medicaid".  Medicaid will pay a limited amount for long term care.  But indivuals are usually sadly misinformed about Medicaid, as well.  They generally have no idea what the real benefits and restrictions are for Medicaid, or what you have to do to qualify for Medicaid. 

To qualify for Medicaid, a person must spend down his or her own assets to poverty level.   And, fundamentally (this is only a broad brush summary), current Medicaid regulations do not allow the surviving spouse to keep enough assets to take care of themselves in their own old age.  This NY Times story tells of a woman who divorced her husband for the purpose of shielding enough assets to care for herself during her own lifetime. 

It is good that the story also mentions the (very important) Five-Year Lookback Rule.  Knowing that people will go to extreme measures to deliberately impoverish themselves in order to qualify for Medicaid, state Medicaid programs will examine all transactions you have undertaken in the last five years prior to your Medicaid application.  If the Medicaid auditors determine that a transaction was done for the purpose of qualifying for Medicaid, they will go after the asset so that it can be sold and proceeds used to reimburse the government for the cost of benefits it paid on your behalf. 

There are special trusts and things that can be done by legal specialists, but the bottom line is that if someone is trying to plan ahead to make themselves eligible for Medicaid, then it is extremely important that they  not wait until there is a need, and especially not until there is a crisis.  Better to do it now, before there is a need even on the horizon. 

You heard me right.  Exactly!  The time to think about this is NOW, when you are healthy and do not have any current need at all.  No matter what your age or health status -- even if you are 20 years old and in perfect health -- make an appointment today with your lawyer to discuss what documents you need to have in place so that your family will not be left destitute in case of a "worst case scenario".

MAKE THAT PHONE CALL!

I must add the disclaimer that this blog is for information only, is not intended to give legal advice or create an attorney client relationship, and it should not be relied on for legal or estate planning.  Consult the lawyer of your choice to learn current laws and to discuss your individual needs. 

Technorati Tags: medicare,medicaid,five year lookback rule,lookback,medicaid lookback,rehab

Mediation for Elders and Their Families

28 August 2009

I like this blog post on Southern Cross, Inc: What is an Elder Care Mediator . It neatly distills a lot of the issues and challenges facing Elders as they confront the inevitable realities of aging. Elder care management is a complex, confusing maze of big, life changing decisions, and most people only navigate the waters a handful of times in a lifetime (e.g. mom, dad, self). An expert in elder care is familiar with the issues and can suggest positive ways to address them. Though I think I view the role of mediator as separate and distinct from that of care manager, I also completely concur with the value of a mediator to help families navigate these waters. Roles shift, many interests must be balanced, decisions are big and life changing. Previously unnoticed family dynamics may suddenly cause disharmony. Mediation offers the possibility of working through all the issues in a positive, safe environment. It may even strengthen family relationships through the process of building teamwork and positive ways of responding to challenges as elders navigate these deep and sometimes turbulent waters.

Death Panels: A Surrealist, Paranoid Fantasy of the Christian Right

20 August 2009

Are Claims Really True That Your Request for Medical Services Under Health Care Reform May Be Reviewed (and denied) by a "Death Panel"?

 

A woman named Mary recently called into an AARP-sponsored health care "tele-town hall" with a question for President Obama.  "I have been told," Mary said, in a call recorded on NPR, that under a new health care plan, "Medicare recipients would be visited and told to decide how they wish to die." 

The foundation for Mary's fear is the fact that the health care bill contains a provision providing for doctors to discuss end of life decisions with their patients.  Right Wing Christian Fundamentalists, and the likes if Rush Limbaugh, are using this to fan flames of fear that if you slide down the slippery slope, these could possibly become death panels. I decided to investigate this claim for myself by reading the materials and the Health Care Act. 

I conclude that the claim is so outlandish that it can not be said to have any basis in reality.*  An online source defines "surrealism" as being "an anti-rational [social] movement of imaginative liberation".  The characterization of provisions of the Health Care Bill as leading to euthanasia is so irrational, imaginative, and so far liberated from any basis in fact, that it is fair to characterize it as surreal. 

As a lawyer, and as a person who takes great interest in medical ethics, I think our society needs to do a better job of discussing end-of-life decisions in advance, before it becomes a crisis.  I am offended at the suggestion that asking doctors to discuss end of life decisions with their patients, in advance of need, is the equivalent of advocating euthanasia.  To the contrary, ascertaining a person's feelings about feeding tubes, respirators, and who they would trust to make decisions on their behalf (only in they were unable to make decisions themselves) gives that person more autonomy, more opportunity to direct his or her care.  If anything, it gives more freedom and autonomy to the individual, not less. 

When a person arrives at a hospital unconscious or unable to participate in the decision process, they are placing crucial decisions in the hands of people whom they may or may not know, and whose values they may or may not share.  These circumstances can also place complete strangers in the awkward position of having to make the most personal of decisions for the patient. 

We are not talking about an ordinary emergency room admission.  In an ordinary case, the directive is clear: treat the person so they can recover and live a normal life.  But modern medicine has the capacity to go far beyond this.  Modern medicine can keep a heart pumping when the brain is dead.  Modern medicine can keep a brain alive even when the ability to breathe independently has been snuffed away by injury. Modern medicine literally has at times to ask itself the question, "am I prolonging the process of living, or am I prolonging the process of dying?"  The inquiry is laden with values and how we view ourselves. 

One of my friends declined a brain surgery that would have erased his memory, because he felt that his memory was an inseparable part of what made him the person he was.  Yet another person could, just as legitimately, choose to have the surgery even if they knew it would erase their memories and drastically change their personality. 

Yes, the patient surely ought to be a part of the decision when it comes to medical treatment.  What an advance directive does is to enlighten caregivers and providers about the patient's preferences in advance, to be used at a later time if (and only if) the patient lacks capacity to voice an opinion due to incapacity. 

Sarah Palin is just, plain WRONG:  A Health Care Power of Attorney is NOT the equivalent of euthanasia!  A doctor or lawyer who wants to discuss this with you is NOT the equivalent of a Death Panel.

Indeed, having that conversation -- with your lawyer, your doctor, your spouse -- enables you to enunciate whatever you like about your care.  Your wish may be that you want everything possible done to keep you alive, no matter how invasive, no matter what the prognosis, or no matter what the cost.  That is your personal decision.  If you have a health care proxy, you voice those wishes and your medical providers will respect it. 

Hear me on this:  EVERY PERSON READING THIS NEEDS AN ADVANCE CARE DIRECTIVE!  (If you would like to talk about your planning needs, feel free to look at my legal web site, HERE.)  

Why doesn't everyone have an advance care directive?  Beats me!  Maybe they are as irrational and ignorant on the subject as Sarah Palin seems to be.  I can understand, on one level.  Nobody likes to think of themselves as comatose or critically injured and unconscious.  Nobody finds it pleasant to think of the worst case scenarios, do we?  But in real life, all it takes is one driver talking on a cell phone to swerve into our lane, and the worst case scenario happens.

Terri Sciavo was in her 20's, healthy, and gainfully employed when she collapsed on the floor of her home with respiratory and cardiac arrest.  Fifty years ago, she would have died on the spot, but thanks to modern medical intervention her life was saved.  However, she was left in persistent vegetative state.  Her husband wanted her taken off life support so that she could be allowed to die naturally.  Her parents thought that she was conscious and aware, and they wanted everything done to prolong her life.  Her family was torn apart.  The two "sides" litigated her case in federal and state courts, and in the legislatures and the press for seven agonizing years.  If only this young healthy woman had executed an advance directive when she were able!

In my experience as a lawyer, it is very difficult to get people to face these questions head on.  Even in my own family, there are those who equate creating a will or discussing end of life issues with death itself.  Even in my own family, there are those who have procrastinated for no good reason.  It makes me want to shake them!  Do such people think that if they make no preparation for a storm that it will somehow turn the other way? 

Yes, it's hard enough to prod people to THINK about the worst case scenario types of circumstances that lead to a need for activation of a Health Care Powers of Attorney, or that would lead to probate of their Will.  Unfortunately, death is inevitable and disability is almost a near certainty, especially right at the end.  Procrastination only invites tragedy, because when a crisis actually hits, the opportunity for advance planning has slipped away.  That's when you leave your next of kin saddled with questions and doubts about whether their decisions match what you would have wanted for yourself.  Or worse, when someone you would not have chosen -- perhaps even a complete stranger -- is appointed as your guardian to make the decisions for you. 

As now, as if there weren't already enough mental barriers, the Rabid Right Wing Religious Radicals act like Chicken Little running around exclaiming that "the sky is falling," using this as an excuse to insinuate that mere discussion of these decisions is equivalent to advocating euthanasia!!!   The Chicken Littles of the world -- the extremists who view advance directives as standing on the brink of the slippery slope that leads to mass euthanasia -- argue that if government is interested in cutting costs then by definition a government-paid person will push people to sign on for voluntary euthanasia. 

This is preposterous.  What leads them to think your family doctor is signing on as a secret agent for an evil, vile government?  What kinds of villains do they think actually work in government, anyway?  Surely not people who live next door to you, who shop in your grocery store and attend your place of worship?  Surely not people whom you elected to office?  Perhaps they are thinking, instead, of people who have the same lack of morality or regard for truth that they exhibit when they make these outrageous claims. 

As a Christian I can hardly express how deeply offended I am at the far right for this sort exaggeration and fear mongering.  Indeed, it makes me almost embarrassed to refer to myself as a Christian, out of fear that I might somehow be associated with such insane viewpoints. 

I hope that everyone reading this will understand that they have a need for a HCPOA and will take time to create one if they don't already have one.  While I must insist on the disclaimer that this blog does not give legal advice and certainly does NOT create an attorney client relationship, you may CLICK HERE for a free link to a Health Care Power of Attorney form designed for use in the State of South Carolina.  (To be valid, this form MUST be filled out, then executed in front of a notary and witnessed by two witnesses.)   For a similar form for your state, Google for the term "Health Care Power of Attorney" and list your state in the google search.  Even if you do not execute a document with formality so that it is legally binding, I also suggest that you print out a copy, think in advance and express your preferences about the decisions it asks you to make, designate a person who you trust to make decisions in the event of your incapacity.  Last but not least, discuss your preferences with that person, and tell others in your family who your health care proxy is (so they know who to call in the event of a crisis and so that the person who is your proxy will know what your preferences are). 

Finally, I am not alone in my outrage about these absurd factual assertions.  The claim that the Health Care Bill would result in euthanasia has been called a "pants on fire" lie by the site Politifact, a nonpartisan fact checking service run by the St. Petersburg Times newspaper, which ascertains the truthfulness of campaign and political statements.  Politifact states:  "[A]nother statement making the rounds . . . says that health care reform would mandate counseling for seniors on how to end their lives sooner. We rated this claim Pants on Fire! The truth is that the health bill allows Medicare, for the first time, to pay for doctors' appointments for patients to discuss living wills and other end-of-life issues with their physicians. These types of appointments are completely optional, and AARP supports the measure."  

The Religious Right should be ashamed for fear mongering which takes one splinter of fact (discussion about end of life decisions) and attempts to build that into a case that the government will force euthanization of Seniors by death panels.  I will write later about what an extreme lack of faith this deliberate fear mongering demonstrates:  lack of faith in the democratic process, lack of faith in fellow men, and lack of faith in God.  I truly feel sorry for anyone with such a paranoid and limited world view.  But I am angry that they would seek to impose that view on me, by undermining the democratic process by use of a deliberate campaign of misinformation.  Let's call it what it is:  LIES. 

Have faith.  The world is not coming to an end.  But think about your preferences for care in the event you are incapacitated.  Some day, hopefully not in the near future, each of us faces the possibility that we may not be able to speak for ourselves.  Do everyone a favor, especially yourself, and execute an Advance Directive document today. 

___________

*This blog post is in reference to an article in Christianity Today as well as to articles appearing in the Washington Post.  To verify my facts I also read the pertinent provisions of the Health Care Act currently proposed before Congress. 

 

Technorati Tags: health care reform,medical ethics,advance directives,health care power of attorney,death panels,euthanasia,religious right,truth in media,ethics